Toll to defend sacking of worker over Islamic State remarks to colleague

Trucking giant Toll will defend its decision to sack a worker for allegedly making offensive comments about Islamic State and the Taliban to a colleague of Middle Eastern heritage, after his unfair dismissal ruling was quashed.

The employee was fired last year over "racist, sectarian and inappropriate" remarks to his Afghan co-worker.

Toll appealed the unfair dismissal ruling to the full bench of the Fair Work Commission. Photo: Andrew Quilty

"Are you from the Taliban?" the employee allegedly asked the co-worker.

"Does Islam say to kill? ... I enjoy seeing people having their heads cut off, do you enjoy it too?"

Toll's internal investigation found the employee had previously made other terrorism-related remarks to the same workmate, and the company sacked him.

In an earlier incident, according to Toll, the employee told the co-worker: "What the Taliban did in America was very good ... I enjoyed when the building was coming down. Did you like it or not?"

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But the sacked employee, with the backing of his union, launched an unfair dismissal claim at the Australian workplace tribunal. He was reinstated and awarded seven weeks' back pay.

Despite labelling the conduct inappropriate, Fair Work Commissioner Bernie Riordan said at the time that the company had failed to provide a final warning for persistent and unacceptable conduct, and said Toll's investigation and disciplinary processes had been flawed.

Toll appealed the ruling to the full bench of the Fair Work Commission, which ruled this month that significant errors had been made, and quashed the initial judgement.

The full bench found that Commissioner Riordan had failed to take into account that the employee's misconduct was, as Toll alleged, a "pattern of unacceptable behaviour".

He had also provided no reason for his reinstatement orders and exceeded the tribunal's powers when ordering Toll to issue written warnings to the employee and the co-worker, who had also allegedly engaged in offensive conduct.

"These errors are sufficiently significant to require the decision to be quashed," Fair Work Commission vice-president Adam Hatcher said.

The unfair dismissal case will be re-heard before a commissioner.

A Toll spokesman said the company was committed to providing safe workplaces that were "free of discrimination and harassment".

"In this case, Toll welcomed the decision of the full bench and is awaiting directions from the Fair Work Commission regarding the next steps for these proceedings," he said.

"Toll will continue to strive to maintain standards that make it an employer of choice."

During the 2015 unfair dismissal hearing, Commissioner Riordan said that making racial slurs "in order to get a reaction" was not acceptable behaviour in the modern workplace.

"Since the 1970s and 1980s, Australian workplaces have been forced to transition from the old-fashioned prejudicial Angelo-Saxon male domains," he said.

"It is no longer appropriate for employees to "stir up" or "take the mickey" out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction.

He said the employee appeared to be "under the misconception" that he was being funny, but "in fact, he was just being stupid".